Thurling and Comcare (Compensation)

[2023] AATA 4481

Thurling and Comcare (Compensation) [2023] AATA 4481 (3 July 2023)

Division:GENERAL DIVISION

File Number(s):      2018/1010

Re:Bryan Thurling

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk

Date:3 July 2023

Place:Sydney

Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 2 March 2017 and 26 April 2017 are affirmed.

..................................[SGD]......................................

Senior Member Dr Linda Kirk

CATCHWORDS

WORKERS COMPENSATION – injuries to left and right knees – whether employee is entitled to compensation pursuant to section 14 of the SRC Act – whether the symptoms suffered were separate events – where the Applicant did not sustain an injury during the workplace incident – where knee replacement was not reasonably required in relation to the injury – decisions under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Thurling and Comcare (Compensation) [2021] AATA 752

REASONS FOR DECISION

Senior Member Dr Linda Kirk

3 July 2023

INTRODUCTION

1. Bryan Thurling (‘the Applicant’) was born in 1956. At all material times he was employed by the Department of Families, Housing, Community Services and Indigenous Affairs (‘FaHCSIA’) at the Office of the Registrar of Indigenous Corporations (‘ORIC’) as an Assistant Manager of Corporate Services.

2. In 1972, when he was about 16 years of age, the Applicant was involved in a motor vehicle accident, during which he sustained a spinal cord injury. The Applicant suffers from a neurological condition called Brown-Séquard Syndrome (‘BSS’) which causes him to experience incomplete quadriplegia,[1] resulting in abnormal lower limb neurology, including reduced left leg power (but normal sensation), and reduced right leg sensory interpretation, particularly affecting pain and temperature, but normal power.[2]

   [1]Exhibit R2, T40, 124.

   [2]Exhibit R1, R2, 5.

3. On 4 September 2007, the Applicant submitted a compensation claim for ‘sprained left knee’ sustained by him on 28 August 2007 when he tripped over a metal door stop at the Jolimont Centre whilst attending a business planning workshop at the Novotel Hotel Civic in Canberra (‘the Jolimont incident’).[3]  On the same day, the Applicant signed and submitted a workplace hazard and injury report for ‘sprained left knee’.[4]

   [3]Exhibit R2, T7, 19.

   [4]Ibid, T8, 34.

4. On 27 September 2007, Comcare (‘the Respondent’) accepted liability for ‘sprain of other specified sites of knee & leg (left) (knee only)’ (‘the Left Knee Determination’).[5]

   [5]Ibid, T13, 39.

5. On 11 February 2008, the Applicant wrote to the Respondent attaching medical certificates ‘which correctly identifies the injury to my right knee’. He also attached a letter from Dr Bernadette Mackay ‘stating it was my right (sic) that was originally injured.’[6]

   [6]Ibid, T19, 53.

6. On 14 February 2008, the Respondent amended the Applicant’s accepted condition to ‘tear of lateral cartilage or meniscus of knee (right)’ (‘the Right Knee Determination’).[7]

   [7]Ibid, T20, 54.

7. On 17 April 2010, the Applicant injured his right shoulder when he lifted a wheelchair into his car (‘the Wheelchair incident’).[8] 

   [8]Ibid, T79, 451.

8. On 3 May 2010, the Applicant submitted a claim for a secondary injury to his right shoulder he sustained during the Wheelchair incident.[9]

   [9]Ibid, T81, 456.

9. On 18 June 2010, the Respondent accepted liability for ‘disorders of bursae and tendons of shoulder region (right)’ (‘Right Shoulder Determination’).[10]

   [10]Ibid, T85, 475.

10. On 2 March 2017, the Respondent issued a Reconsideration of Own Motion (‘Knee ROM’) in respect of the Applicant’s knee injury (‘First Reviewable Decision’).[11] Pursuant to the Knee ROM, the Respondent stated that it had reconsidered its acceptance of the Applicant's claim for injury to his right knee. It affirmed the Left Knee Determination, which it found had the effect of revoking the Right Knee Determination.

    [11] Ibid, T69, 198.

11. On 26 April 2017, the Respondent issued a further Reconsideration of Own Motion (‘Shoulder ROM’) (‘Second Reviewable Decision’).[12]  It found that the Respondent had no liability for the Applicant's shoulder claim, as it did not have liability for his right knee injury pursuant to the Knee ROM.

    [12] Ibid, T106, 532.

12. On 2 March 2018, the Applicant submitted an application for request for review of the Knee ROM, together with an application for an extension of time.

13. On 2 March 2018, the Applicant submitted an application for request for review of the Shoulder ROM, together with an application for an extension of time.

14. On 22 June 2020, the Applicant’s request for an extension of time proceeded to hearing before the Tribunal (‘EOT hearing’).[13]

    [13]Ibid, T114, 651.

15. On 1 April 2021, the Tribunal granted the Applicant’s applications for extensions of time to apply for review of the Knee ROM and the Shoulder ROM: Thurling and Comcare (Compensation).[14]

    [14] [2021] AATA 752.

    APPLICATIONS FOR REVIEW

16. There are two applications for review before the Tribunal

17. The first application, which is the subject of file number 2018/1010 (‘the First Review Application’), relates to the Respondent’s First Reviewable Decision dated 2 March 2017 to retrospectively deny liability by revoking the Right Knee Determination dated 14 February 2008, which accepted liability for a right knee injury.[15] The Respondent found that the Left Knee Determination dated 28 September 2007 was correct, and affirmed this Determination.

    [15]Exhibit R2, T69, 198.

18. The second application, which is the subject of file number 2018/5198 (‘the Second Review Application’), relates to the Respondent’s Second Reviewable Decision dated 26 April 2017 to retrospectively deny liability by revoking the Right Shoulder Determination dated 18 June 2010 as it did not have liability for the Applicant’s right knee injury pursuant to the Knee ROM.[16]

    [16]Ibid, T106, 532.

19. The review applications were heard by the Tribunal at a hearing conducted on 1, 2 and 3 March 2023. The following witnesses gave oral evidence at the hearing:

    ·the Applicant;

    ·Dr Roger Pillemer, Orthopaedic Surgeon;

    ·Dr Phillip Vecchio, Rheumatologist;

    ·Dr Gautam Khurana, Neurosurgeon; and

    ·Dr Anthony Cairns, Consultant Orthopaedic Surgeon.

20. The following documents were before the Tribunal:

    • Respondent’s Amended Statement of Facts, Issues and Contentions dated 16 February 2023
    • Hearing Book, lodged on 9 February 2023 - Exhibit R1
    • Section 37 T-Documents (‘T-Documents’) lodged on 21 June 2021 - Exhibit R2
    • Supplementary T documents dated 20 February 2023 – Exhibit R3
    • Applicant’s Amended Statement of Facts, Issues and Contentions dated 9 February 2023

    LEGISLATIVE FRAMEWORK

21. The entitlement to compensation for an employee under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) is conferred by section 14(1) which provides that the Respondent is:

    … liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

22. ‘Injury’ is defined in section 5A of the SRC Act:

    (1)…

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

    …

23. A ‘disease’ is defined in section 5B of the SRC Act to mean, so far as this case is concerned:

    (1)…

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

    (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee's health.

    This subsection does not limit the matters that may be taken into account.

    (3) In this Act:

    "significant degree" means a degree that is substantially more than material.

24. An ‘ailment’ is defined in section 4 of the SRC Act to mean:

    … any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

25. ‘Aggravation’ includes acceleration or recurrence.

26. Section 16(1) of the SRC Act relevantly provides that where an employee suffers an ‘injury’, the Respondent is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as it determines is appropriate to that medical treatment.

    ISSUES FOR DETERMINATION

27. In relation to the First Review Application, the issue to be determined is:

    1)Did the Applicant sustain an injury to his right knee on 28 August 2007?

28. In relation to the Second Review Application the issues to be determined are:

    1)Is the Applicant's right knee condition an ‘injury’ for the purposes of section 14 of the SRC Act?

    2) If so, was the total knee replacement medical treatment that was reasonably required in relation to that injury for the purposes of section 16 of the SRC Act?

    APPLICANT’S EVIDENCE

    Early right knee symptoms

29. Medicare records before the Tribunal record that on 13 November 1986 a knee diagnostic arthroscopy was performed on the Applicant by Dr William Coyle.[17]

    [17]Exhibit R3, ST118, 763.

30. A Woden Valley Hospital report from November 1989 written by Lesley Hall, Physiotherapist, records that the Applicant presented with right knee and left ankle symptoms and investigations were performed on his right knee:[18]

    Presenting problem is right knee and left ankle ‘collapsing’, causing patient to be wheelchair bound for one to two days at a time.

    Collapsing episodes

    Right knee and left ankle – occur separately. Right knee – (nil) pain, but knee spasm – cannot extend, cannot bear weight through right leg, cannot kneel/crawl.

    Occurs + or – swelling. Diffusions -  drained by Dr Andrew Booker

    Frequency

    Knee > ankle. Varies between quite regular to not so regular. Both began two to two and a half years ago. Each episode lasts one to two days, then is fine. Knee usu occurs when on ‘month off’ bistro

    May be associated with kneeling to do gardening (full flexion of the knees), but not necessarily linked with anything in partic.

    …

    Extensive investigations have revealed (nil) abnormality eg. arthrogram and arthroscopy right knee.

    [18]Exhibit R1, R11, 701.

31. In his oral evidence at the hearing, the Applicant told the Tribunal that he does not recall having an arthroscopy of his right knee at this time.[19]

    [19] Transcript of proceedings, 3 March 2023, 100.

32. Another Woden Valley Hospital physiotherapy report dated 23 January 1990 records:

    Complained of nil problems until 17/1/90 – felt right knee give.

    18/1/90, swollen, unstable, but not “collapsed”. Left ankle, (pain) increased. Worse after sitting (therefore) better if moving therefore kept going

    Avoided wheelchair but first time both knee and ankle have probs (sic) simultaneously.

    Complained of about average number of episodes of “collapsing” over the past few months.

    NB: Has not done any weeding in months – too afraid that this will aggravate knee ‘collapse’.

33. A further record dated 26 February 1990 records:

    Appointment with Dr Farmback. Discussed recent ‘collapsing’ problems.

    Seems to me that they have decreased in frequency. That lack of kneeling (ie, no gardening) may be influencing decreasing episodes of right knee problems. Mobilisations of left ankle improving status of left ankle.

34. A subsequent record dated 30 April 1990 records:

    Patient reviewed by myself and Dr Farmback. Complained of one episode only of one day spent in a wheelchair with right knee and ankle and left ankle problems. Kneeling continues to be avoided.

    Discharged.

35. The Applicant told the Tribunal that he does not remember seeing Dr Farmback.

36. The final physiotherapy report by Ms Hall dated 10 May 1990 records:

    Was attending two times a week as an outpatient to try to find a reason for a ‘collapsing’ problem.

    At times the right knee and/or left ankle give way causing him to be wheelchair bound for a day or so.

    It appears that the right knee problem was caused by kneeling, therefore kneeling is now avoided by the patient.

    Other physio sessions concentrated on increasing range of movement range of movement (active and passive) about the left ankle and right knee

    Following (two months) with no physio input, the patient did not have any increase in frequency or severity of symptoms. He accepted that he would have to learn to live with the occasional and forced day in a wheelchair and will chart the times in a diary to try and find a further reason.

37. During cross-examination, the Applicant agreed that he had suffered problems involving instability and collapse of his right knee and spasming of the muscles of the right knee from late 1989 through to April or May 1990.[20] He also agreed that, notwithstanding his Brown-Séquard syndrome, he was capable of feeling instability, and feeling and describing a sensation of swelling or tightness, affecting his right knee.[21]

    [20] Transcript of proceedings, 1 March 2023, 30.

    [21]Ibid.

38. In his statement dated 7 June 2018, the Applicant described symptoms he experienced in his right knee in approximately 1995:[22]

    I do recall in about 1995 or so, I suffered some swelling in my right knee.  I don’t recall this swelling lasing more than a couple of weeks.  However, I also recall having an arthroscopy to investigate it. Once the swelling went down I don’t believe my doctor was able to figure out the cause of the swelling, only that I had some arthritis and there was fluid which had built up in the knee.  That fluid was drained, my knee was strapped and that was the end of it.

    [22]Exhibit R2, T110, 628, [23].

39. In December 2007, the Applicant told his general practitioner, Dr Richard Bate, that 10 years ago he underwent a right knee arthroscopy performed by Dr Geoffrey Stubbs, Orthopaedic Surgeon.[23] 

    [23] A letter from Dr Stubbs to Comcare dated 3 July 2009 states “thank you for your request for information with regard to an arthroscopy performed on Mr Thurling on 1995 … we have no record of performing any surgery at all for Mr Thurling and I have not seen him since 5th November 1991. I first saw him on 20.8.91 for a consultation and he had total of six visits. Comcare is certainly listed as the payee in his file but I do not have records of a claim number. Unfortunately the file is so old that I do not have a record of which part of the body was involved. I am sorry that we can be of no further assistance to you”: Exhibit R2, T27.

    Jolimont incident – August 2007

40. In his statement dated 7 June 2018, the Applicant described the Jolimont incident:[24]

    On 28 August 2007, the whole ORIC office was having a meeting in the Novotel in Canberra on Northbourne Avenue. It was a business development/business reporting type of meeting that was going to be held over a period of a week …

    At about 8 or 8.30AM, I had parked my car in a disabled parking bay at the back of the Jolimont Centre and was walking through the Jolimont Centre to get to the Novotel. On my way through, I detoured to the men's room in the Jolimont Centre. This required me to walk down the hallway and go through double doors that meet in the middle and on the other side of these doors are the restrooms. I was rushing a little bit so I could get up to the meeting venue to make sure everything was in place and organised and so the meeting could start on time at 9AM.

    As I came through the doorway from the restrooms back into the Jolimont Centre, I didn't notice that there was a metal sleeve on the floor in which the sliding doors bolt into to lock. I caught the toe of my left foot on this metal sleeve which caused me to overstep and reef (or yank) my right knee and I fell to the floor. I believe I may have fallen onto the left side of my body but I am not certain.

    On the Jolimont side of those doors is a coffee shop and a worker in that shop saw me fall and came over to assist me. I was unable to get my right leg to mobilise and couldn't get up from the floor so they brought me a chair and helped me onto it. I believe I then called my boss, Jodie Goddard who organised a wheelchair from the Novotel and Janita Whish-Wilson, one of my team members, was called to come down and help me.

    Janita assisted me into the wheelchair and she wheeled me back to the meeting. I worked for a couple of hours in the wheelchair but I still wasn't able to mobilise. As I cannot feel pain on my right side, it's really hard for me to describe the feeling that I get when I should be suffering pain. The best I can describe it is that I feel discomfort rather than pain. In any event, I was feeling discomfort in my right leg and I was suffering pain in my left knee. I could bear a bit of weight on the left leg but I couldn't bear any weight on my right leg.

    At that stage I didn't believe I had injured my right leg; I knew that I had reefed it, but assumed with a bit of rest it would be okay and there wouldn't be any problems. I also assumed the same for my left knee. However, after a couple of hours as I had not improved and on Jodie's recommendation, I thought it best that I leave the meeting and go home and rest.

    Janita took me to my car and drove me home. With Janita's support, she helped me inside and caught a taxi back to the Novotel. After some time, I could bear some weight on both legs but I didn't do much. I could get around to the bathroom and the kitchen as long as I went slowly and used walls and furniture as support to move.

    [24]Exhibit R2, T110, 627, [29]-[35].

41. In the afternoon following the Jolimont incident, the Applicant consulted his General Practitioner, Dr Bate. In his statement, the Applicant wrote:[25]

    It is my normal practice to call my general practitioner's office, Dr Richard Bate, for an appointment and they will usually have me seen on the same day. I believe I called Dr Bate's rooms and later that day went in for my appointment. I understand that Dr Bate recorded only a left knee injury at that time. I am not exactly sure why that is but I assume because of my lack of feeling of pain in the right knee, I may have only focused on my left knee during this appointment. I am unable to recall whether I discussed that I was suffering from discomfort in my right knee.

    I believe I then took a few days off work and when I returned, I still continued to suffer pain in my left knee but not enough to stop me from working. I continued driving to work and did not need the wheelchair after 28 August 2007. I could not state how long I continued to suffer pain in my left knee, but I believe it was only a matter of two or three months.

    [25]Ibid.

42. The Applicant attended Dr Bate, for review on six occasions between 31 August and 14 September 2007. The clinical notes record as follows:[26]

    [26]Exhibit R2, T75, 230.

Date	Reason for visit	Extract of clinical note
28 August 2007	Fall	'Tripped on metal protrusion in doorway falling and twisting left knee…'
31 August 2007	Review	'Review left knee'
3 September 2007	Review	'Left knee better'
7 September 2007	Review	'Activity related pain left thigh and knee… Cruciates stable. NCL and LCL intact. Note comparable degree of laxity in the LCL bilaterally'1
10 September 2007	Review	'Left knee a little better. Needs further protection'
12 September 2007	RV Knee	'Feels there has been further improvement; less pain. Needs more time' (sic)
14 September 2007	Review	'Further improvement; feels ready for RTW Monday; see if any problems' (sic)

1. During cross-examination at the hearing, the Applicant agreed that the injury to his left knee had resolved by 14 September 2007.[27] He also agreed that on the dates he saw Dr Bate in August and September 2007, he was not experiencing any problems with his right knee.[28]

   [27] Transcript of proceedings, 1 March 2023, 6.

   [28]Ibid, 17.

   Painting event

2. During his oral evidence, the Applicant confirmed that in December 2007 he was not in paid employment, and that he assisted a friend to paint the exterior of his house (‘Painting event’).  He told the Tribunal that he was unable to complete the job because of ‘instability’ in his right knee.  He said that he did not do any ladder work because when he tried to step up onto the ladder, he felt that his knee was insecure in that it was not going to hold him, and if he stepped up that there was a possibility that he would fall and injure himself.[29]

   [29]Ibid, 43.

   Right knee symptoms – December 2007

3. In his statement dated 7 June 2018, the Applicant described the right knee symptoms he experienced in December 2007:[30]

   A couple months after the incident on 28 August 2007, I began noticing that my right knee had becoming swollen. I also began suffering muscle spasms in my right knee which would cause the knee to let go and make me fall. This was the first time I had even noticed an instability in my right knee and it would come about on random occasions, for example when I was getting out of a chair, when I was getting out of bed or when showering.

   After about a month of this instability, I realised the problem may not be going away and that I had actually injured my right knee on 28 August 2007, so I again saw Dr Bate about the issue. I estimate at this time I was suffering, and continued to suffer, from that instability at least once a fortnight and sometimes as much as once a week.

   [30]Exhibit R2, T110, 627-634.

4. On 13 December 2007, the Applicant presented to Dr Bate complaining of right knee pain. Dr Bate recorded the following in his clinical note:[31]

   1/2 swollen right knee is probable (sic) painful although can't feel pain; very (sic) "unstable" showering in the morning; getting (sic) out of chairs. Previous knee arthroscopies bilaterally Geoff Stubbs 10 years ago. Fluctuating symptoms; very (sic) bad day yesterday. Similar episode years ago… Not working at present. Helping (sic) friend paint house exterior.

   [31]Exhibit R2, T75, 232.

5. During cross examination, the Applicant confirmed that he has only ever had an arthroscopy of his right knee.[32]

   [32] Transcript of proceedings, 1 March 2023, 16.

6. On 13 December 2007, a scan of the Applicant's right knee showed moderate joint effusion displacing the infrapatellar fat pad anteriorly with features of early tricompartmental osteoarthrosis and small osteophytes noted at the patella, intercondylar notch and lateral tibial plateau.[33]

   [33]Exhibit R2, T43, 112.

7. In a clinical note dated 29 January 2008, Dr Bate recorded:

   Ongoing symptoms in right thigh and leg. Describes an unpleasant tightness in calf and posterior thigh, especially when kneeling back on his haunches (squatting). Also has difficulty transferring from sitting to standing and also initiating walking. has to go slow and reduce stride length in order to prevent “muscle spasm and sense of instability”. Feels less confident in gait.

8. During cross-examination, the Applicant agreed that these were similar to the symptoms about which he had complained to Ms Hall in 1989 and 1990.[34]

   [34] Transcript of proceedings, 1 March 2023, 31.

9. On 31 January 2008, an MRI scan of the Applicant’s right knee showed a low-grade injury to the proximal medial collateral ligament (‘MCL’) and a possible partial anterior cruciate ligament (‘ACL’) tear.[35] The findings of the report were outlined by Dr Michael Jones, Specialist Radiologist, in his letter to the Respondent’s solicitors dated 22 May 2022 as follows:[36]

   ·     changes of synovitis, namely synovial proliferation with a joint effusion, and stranding within a small popliteal fossa cyst.  

   ·     features of a leaking popliteal fossa cyst, namely fluid in the tissues around the cyst as well as fissuring of the patellar articular cartilage with signal intensity change in the lateral patellar facet. 

   ·     generalised wear of the articular cartilage in the lateral femoro-tibial compartment with subchondral bone marrow signal changes, and small marginal osteophytes at the lateral joint margin.

   ·     partial extrusion of the lateral meniscus with an extensive horizontal lateral meniscal tear extending from anterior to posterior horn. This is caused by the joint space narrowing secondary to chondral wear.

   ·     a small peripheral third posterior horn medial meniscal tear.

   ·     some oedema associated with the anterior cruciate ligament, suggesting a partial anterior cruciate ligament tear.

   ·     stranding within the soft tissues overlying the medial collateral ligament consistent with a low-grade sprain.

   [35]Exhibit R2, T16, 49.

   [36]Exhibit R1, R6, 58.

10. On 6 February 2008, Dr Bernadette Mackay, General Practitioner, wrote a letter addressed to the Respondent which stated as follows:[37]

    Mr Thurling was initially seen by Dr Bate following an injury in which he tripped and caught his Lt (sic) foot in a metal protrusion and in the process twisted his Rt knee.

    The certificate from Dr Bate was written as lt knee injury but was infact (sic) a rt knee injury with follow up referral to Dr Creer for Rt knee injury.

    [37]Exhibit R2, T17, 51.

11. During cross-examination, the Applicant stated that he did not recall the conversation with Dr Mackay.[38]

    [38] Transcript of proceedings, 1 March 2023, 33.

12. Dr Rob Creer, Orthopaedic Surgeon, examined the Applicant on 6 February 2008. He recorded that the Applicant had twisted his right knee when he fell on 28 August 2007, and he felt a ‘tearing sensation’.[39] 

    [39] Transcript of proceedings, 3 March 2023, 96.

13. In his report dated 6 February 2008, Dr Creer reported:[40]

    His MRI scan shows large tears of the medial and lateral menisci. There was a moderate effusion. He was also noted to have moderately advanced degenerative changes in the lateral compartment. There was a low grade strain to the MCL and there was some oedema in the ACL (although clinically it was stable). His x-rays show again the moderate effusion and early tricompartmental osteoarthritis. No other abnormality was noted.

    [40]Exhibit R2, T9, 35.

14. On 11 February 2008, the Applicant wrote to the Respondent attaching medical certificates ‘which correctly identifies the injury to my right knee.’ He also attached the letter from Dr Mackay ‘stating it was my right (sic) that was originally injured.’[41]

    [41]Ibid, T19, 53.

15. On 25 February 2008, Dr Creer performed arthroscopic partial lateral meniscectomy on the Applicant’s right knee. In his letter to Dr Mackay dated 5 March 2008, Dr Creer reported:[42]

    On 25.2.08 I performed arthroscopic partial lateral meniscectomy to [the Applicant’s] right knee. He had advanced degenerative change in the medial compartment. There was a degenerative parrot break tear involving the anterior third of the lateral meniscus. This was trimmed back to a stable base.  The medical tibial and femoral articular surfaces, and the medial meniscus were normal. The retropatellar surface had Grade II chondromalacia with deep chondral splits.  The central groove had Grade II chondromalacia with a deep sulcus through the femoral articular surface. At the end of the procedure he was given a cortisone injection.

    [42]Ibid, T22, 57.

16. In a letter to the Respondent dated 5 April 2009, Dr Creer reported that the Applicant’s right knee displayed ‘advanced degenerative changes, in particular the lateral compartment of the knee and to a lesser extent the patellofemoral joint [which] will deteriorate with time and may have been exacerbated by the torn meniscus secondary to the fall in August 2008.’[43]

    [43]Ibid, T24, 60.

17. On 5 May 2009, the Applicant saw Mr Tibor Haigel, Physiotherapist, at the request of his employer. He told Mr Haigel that when he fell on 28 August 2007, his left foot had caught on the metal protrusion on the floor, causing him to twist and fall onto his right knee.[44]

    [44]Ibid, T25, 61.

18. On 28 July 2009, the Applicant saw Dr William Coyle, Orthopaedic Surgeon at the request of the Respondent. He told Dr Coyle that when he fell on 28 August 2007, he twisted his right knee and immediately felt a sensation in that knee.[45]

    [45]Ibid, T29, 77.

19. On 4 August 2009, Dr Coyle, Orthopaedic Surgeon, provided a report in which he opined that the specific diagnosis of the Applicant’s right knee was ‘osteoarthritis to which he was predisposed by his long-term altered gait but which was rendered symptomatic by a twisting injury at work in August 2007. Despite arthroscopic surgery the knee symptoms have persisted and are progressing.’[46] Dr Coyle considered the Applicant’s ‘quadriparetic gait which stresses the lateral compartment of his right knee rendered it valgus, predisposed him to the injury which occurred at work.’[47]

    [46]Ibid, T29, 79.

    [47]Ibid, T29, 81.

20. On 24 November 2009, the Applicant underwent a total right knee replacement surgery, performed by Dr Creer.[48] In his operative report dated 24 November 2009, Dr Creer stated there was bare bone in the lateral compartment, indicating the lateral compartment chondral wear progressed between 25 February 2008 and 24 November 2009.[49]

    [48]Ibid, T35, 92.

    [49]Ibid, T66, 192.

21. In a report dated 9 June 2010, Dr Creer reported in relation to the Applicant’s right knee replacement that he had virtually no pain, the knee was stable and he had ‘increasing quads bulk and tone.’ He noted that the Applicant could ‘stand and walk reasonably comfortably’ although he continued to have ‘gait problems due to his underlying muscular problems.’[50]

    [50]Ibid, T84, 474.

22. In a letter dated 23 July 2010, the Respondent requested an assessment and report from Dr Anthony Cairns, Consultant Orthopaedic Surgeon.[51]

    [51]Ibid, T44, 120.

23. On 29 July 2010, the Applicant saw Dr Anthony Cairns. He told Dr Cairns that when he fell on 28 August 2007, he ‘sustained a twisting injury to his right knee.’[52]

    [52]Exhibit R1, R11, 510.

24. On 27 September 2019, the Applicant saw Dr Michael Fearnside, at the request of his solicitors. He told Dr Fearnside that when he fell on 28 August 2007, he landed heavily on his left hip.[53]

    [53]Exhibit R2, T112, 640.

25. On 20 September 2021, the Applicant saw Dr Phillip Vecchio, Rheumatologist, at the request of the Respondent. He told Dr Vecchio that he remembered falling to the floor, probably on his left side, on 28 August 2007. He told him that his right knee had been unstable since the fall, but that he did not go back to see Dr Bate about it until December 2007. He said that he had intermittently used a wheelchair following the fall.[54]

    [54]Exhibit R1, R2, 4, [6].

26. On 12 October 2021, the Applicant saw Dr Gautam Khurana, Neurosurgeon, at the request of the Respondent. He told Dr Khurana that he twisted one or both of his knees when he fell on 28 August 2007.[55]

    [55] Transcript of proceedings, 2 March 2023, 67.

27. On 8 March 2022, the Applicant saw Dr Roger Pillemer, at the request of his solicitors. He told Dr Pillemer that he twisted his left knee when he fell on 28 August 2007, and that his right knee symptoms commenced within a month or so after the Jolimont incident when he noticed swelling in his knee and it was giving way.[56]

    [56]Exhibit R1, A2, 44.

    Wheelchair incident – April 2010

28. On 17 April 2010, the Applicant attended an exhibition at the Rose Hill racecourse. When he was attempting to load his wheelchair back into his vehicle after use, his right shoulder became acutely painful.

29. On 3 May 2010, the Applicant submitted a claim for workers’ compensation for musculoligamentous tear of the right shoulder which was caused by lifting a wheelchair after a total knee replacement.  He stated that he was injured on 17 April 2010 and first sought medical treatment on 23 April 2010.[57]

    [57]Exhibit R2, T81, 456.

30. A MR Arthrogram of the Applicant’s right shoulder on 7 May 2010 reported a minor abnormal signal in the lateral supraspinatus tendon in keeping with mild tendinosis and severe acromioclavicular (‘AC’) joint osteoarthritis with synovitis and bone marrow oedema. It also reported subacromial enthesophyte with subdeltoid/subacromial bursitis.[58]

    [58]Ibid, T80, 455.

31. In a report dated 24 May 2010, Dr Creer opined that the Applicant had an acute chronic impingement of the supraspinatus portion of the rotator cuff which occurred when he repeatedly lifted his wheelchair in and out of the boot of his car. This was exacerbated by the Applicant’s immobility due to his right knee replacement. Dr Creer recommended an ultrasound guided cortisone injection into the subacromial space and physiotherapy, and if this failed to alleviate pain, an arthroscopic acromioplasty.[59]

    [59]Ibid, T82, 472.

32. On 7 June 2010, the Applicant had a subacromial steroid injection to his right shoulder.[60]

    [60]Ibid, T83, 473.

33. In a report dated 9 June 2010, Dr Creer reported that the Applicant had the cortisone injection in the shoulder.[61]

    [61]Ibid, T84, 474.

34. In a letter dated 10 June 2010, the Respondent requested an assessment and report from Dr David McNicol, Orthopaedic Surgeon.[62]

    [62]Ibid, T39, 97.

35. In a letter date 18 June 2010, the Respondent accepted liability under section 14 of the SRC Act for the Applicant’s condition of ‘bursae and tendons shoulder region (right)’.[63]

    [63]Ibid, T85, 475.

36. In a report dated 24 June 2010, Dr McNicol opined that the Applicant was not fit to return to work, and that any return would be determined by the response of his right shoulder treatment.[64]

    [64]Ibid, T40, 101.

37. In a report dated 7 October 2010, Dr Creer opined that conservative treatment on the Applicant’s shoulder was not beneficial long term, and he had ongoing impingement of the supraspinatus portion of the rotator cuff and AC joint arthritis. He recommended an arthroscopic acromioplasty and excision of the AC joint.[65]

    [65]Ibid, T86, 486.

38. On 3 November 2010, Dr Creer performed surgery on the Applicant’s right shoulder.

39. In a report dated 18 November 2010, Dr Creer confirmed that he performed an arthroscopic acromioplasty and excision of the Applicant’s AC joint right shoulder and that the wounds had healed well.[66]

    [66]Ibid, T88, 488.

40. In a report dated 14 December 2010, Dr Creer reported that the Applicant’s shoulder had healed well, and he had minimal pain. He recommended that the Applicant continue with a supervised physiotherapy rehabilitation program.[67]

    [67]Ibid, T89, 489.

41. In a report dated 28 February 2011, Dr Creer reported that the Applicant’s right shoulder continued to improve, the pain had decreased, and the range of motion had increased. However, the Applicant still experienced pain consistent with impingement in the arm when he lifted anything mild to moderate weight above chest height. He recommended that the Applicant continue with a strengthening program with physiotherapy.[68]

    EXPERT MEDICAL EVIDENCE

    [68]Ibid, T91, 493.

    Dr Michael Fearnside, Neurological Surgeon

42. Dr Fearnside examined the Applicant at the request of the Applicant’s solicitors on 27 September 2019 and provided a report of the same date.[69]

    [69]Ibid, T112, 640.

43. Dr Fearnside reported that the Applicant has Brown-Séquard syndrome with the lowest normal functioning level at C7 which caused spastic weakness, loss of proprioception and vibration sense, as well as loss of pain and temperature sensation. He also opined that the lack of sensation in the Applicant’s right leg explained the lack of early symptoms following the Jolimont incident:[70]

    Mr Thurling said that since the motor vehicle accident he had not been able to perceive pain in the right side of his body and this is entirely consistent with the neurological picture of a Brown Sequard syndrome.

    With regard to the chronology following his workplace injury on 28/8/07, it is consistent that if Mr Thurling injured both his left and his right knee, he may well not have felt any pain in the right knee. Having carefully examined Dr Bale's records, the pain was localised to his left knee and this resolved over a month or so.

    For the right knee, Mr Thurling had no pain perception and the right knee injury came to attention some months later when he developed what was probably a progressive effusion with a feeling of tightness (pressure sensation) and the instability which caused him to stumble.

    The lack of sensation in the right leg generally does explain the lack of symptoms early, particularly pain during the initial period following the workplace injury on 28/8/07.

    There are therefore no inconsistencies in his presentation.

    [70]Ibid, 646-647, [6.2]-[6.7].

    Dr Michael Jones, Specialist Radiologist

44. In his letter to the Respondent’s solicitors dated 5 May 2022, Dr Jones provided his opinion in relation to the radiological changes in the Applicant’s 31 January 2008 right knee imaging, specifically whether those changes are traumatic or degenerative in nature:[71]

    I rely on the description of the MRI findings in the report dated 31 January 2008 …

    In summary the MRI found osteoarthritis of the lateral femoro-tibial compartment, chondral fissuring on the posterior patellar surface, a lateral and a possible medial meniscal tear, an anterior cruciate ligament (ACL) tear, a medial collateral ligament (MCL) sprain and a joint effusion with synovitis (inflammation of the lining of the joint and debris and the fluid).

    The changes of osteoarthritis are degenerative. Due to the time it takes for chondral wear to occur osteoarthritis must have preceded the fall on 28 August 2007.

    The timing of the meniscal tears, the ACL and the MCL tears is indeterminate from the MRI findings. They may have preceded the fall, or could be caused by the fall. They are often seen in people with knee joint osteoarthritis as a consequence of joint instability. Likewise they are commonly seen following a knee injury in which case they are usually ascribed to the injury if there are no chronic knee joint changes on the imaging at which they were detected.

    The timing of the knee joint synovitis is indeterminate from the MRI findings. Acute (post-traumatic) synovitis can develop in a joint following injury and is commonly seen in the knee and shoulder joints, the wrists and small joints of the hands and feet following an injury. Synovitis is also a common accompaniment of osteoarthritis particularly in the knee. Symptomatic knee joint osteoarthritis commonly produces a knee joint effusion with features of synovitis on imaging, namely synovial proliferation and debris within the joint fluid. Mr Thurling’s synovitis could therefore be due to his fall, due to his osteoarthritis, or due to a combination of both.

    [71]Exhibit R1, R6, 59.

45. Dr Jones also provided his assessment of the age of the changes in the Applicant’s 31 January 2008 right knee imaging specifying when, on the balance of probabilities, those changes occurred:[72]

    None of the changes in the MRI scan can be accurately aged. Osteoarthritis may be slowly progressive or rapidly progressive. It may rapidly progress in circumstances where there is loss of pain sensation, such as would occur with Brown Sequard syndrome, peripheral neuropathy, and obliteration of pain by chronic use of analgesia. The lack of pain results in significant joint damage from normal use.

    The chondral loss described in the MRI report could have developed within 6-12 months prior to the MRI scan, or may have developed over several years.

    The synovitis could be acute or long-standing. The meniscal ACL and MCL tears may be acute or longstanding.

    There are no MRI features which enable their age to be determined.

    [72]Ibid, R6, 59.

    Dr Roger Pillemer, Orthopaedic Surgeon

1. Dr Pillemer examined the Applicant on 8 March 2022 and provided three reports dated 8 March 2022,[73] 21 April 2022,[74] and 28 September 2022,[75] and gave oral evidence at the hearing.

   [73]Ibid, A2, 44.

   [74]Ibid, A4, 55.

   [75]Ibid, A6, 73.

2. In his report dated 8 March 2022, Dr Pillemer stated that the Applicant informed him that approximately 10 years or more prior to the Jolimont incident in August 2007, he had developed swelling of his right knee region and had seen an orthopaedic surgeon who performed an arthroscopy.[76] The Applicant reported that he had no further problems with his right knee until after the Jolimont incident in August 2007.[77] Dr Pillemer reported that the Applicant told him that the symptoms in his right knee  occurred within a month of the incident.[78]

   [76]Ibid, A2, 2.

   [77]Ibid.

   [78]Ibid.

3. Dr Pillemer provided the following opinion in relation to the Applicant’s right knee condition:[79]

   In my opinion Mr Thurling’s injury on 28 August 2007 caused an aggravation of an advanced longstanding osteoarthritic condition of his right knee, and as noted in my opinion this resulted in a right total knee replacement having to be carried out earlier than might otherwise have been the case.

   He does have co-morbidity features, being his neurological condition of a Brown Sequard Syndrome with spinal cord damage since the age of 16. It needs to be stressed that he is managing remarkably well considering his ongoing problems.

   In my opinion the injury on 28 August 2007 would be regarded as being a significant aggravation of his underlying condition, and making the need for the total knee replacement to have been carried out earlier than otherwise have been the case.

   In my opinion there was an injury to his right knee in August 2007, but symptoms only became apparent a month later, mainly due to the fact that he does not have any protective sensation on the right side.

   In my opinion Mr Thurling continues to suffer the effects of his right knee injury.

   [79]Ibid, A2, 5.

4. In his report dated 28 September 2022, Dr Pillemer responded to a number of questions arising from the report of Dr Vecchio dated 3 August 2022. He stated that he agreed with Dr Vecchio’s opinion that there was instability in the Applicant’s right knee prior to 28 August 2007.[80] However, he disagreed with Dr Vecchio’s opinion in relation to the reason for the delay in the Applicant’s presentation in relation to his right knee, stating that in his view the delay was a result of his Brown-Séquard syndrome with lack of appreciation of pain.[81]

   [80]Ibid, A5, 2.

   [81]Ibid, A5, 2.

5. Dr Pillemer provided the following opinion in relation to the Applicant’s right knee condition:[82]

   It remains my opinion that at the time of his injury on 28 August 2007 he aggravated an
   underlying problem of his right knee where he already had advanced osteoarthritic
   change.

   …

   I agree with Dr Vecchio’s opinion that the right knee replacement required in November 2009 was the result of a severely osteoarthritic, valgus-aligned and unstable joint which had evolved over decades. I do not however feel that this was independent of the injury in August 2007, as in my opinion if not for that particular injury, he may well not have developed the symptoms in his right knee at the time he did, and might well not have required the total knee replacement to have been carried out at the particular time that it was carried out, and this may well have been required at a later stage.

   …

   Once again in my opinion the right knee replacement was very likely to have been carried out earlier than might otherwise have been the case, if not for the work-related injury in 2007.

   [82]Ibid, A6, 3.

6. During his oral evidence at the hearing, Dr Pillemer confirmed that he had reviewed Dr Bate’s notes and is now aware that the Applicant’s right knee symptoms occurred in about mid-November 2007.[83]

   [83] Transcript of proceedings, 1 March 2023, 47.

7. Dr Pillemer told the Tribunal that there are three possibilities in relation to the Applicant’s injuries from the Jolimont incident:[84]

   Either Mr Thurling injured both knees at the time of his injury in August 2007, and he didn’t complain of problems in the right knee because he didn’t feel pain; or he injured his left knee at the time of the injury, and because of favouring his left knee he was therefore placing increasing stress on his right knee, which then became symptomatic. The third and only other possibility is that the swelling and the problems in his right knee started a month or two months after the injury and they were unrelated. Now in my opinion, either the first or the second of those possibilities exist. I think it’s too much of a coincidence to suggest that the third possibility is what the cause of his problem was.

   [84]Ibid, 50.

8. Dr Pillemer agreed that the Applicant could have injured his right knee during the Painting event in December 2007, but this did not exclude the possibility that he also injured this knee when he fell in August 2007.[85]

   [85] Transcript of proceedings, 1 March 2023, 50.

   Dr Phillip Vecchio, Rheumatologist

9. Dr Vecchio examined the Applicant at the request of the Respondent by video-link on 20 September 2021 and provided two reports dated 22 September 2021[86] and 3 August 2022.[87]

   [86]Exhibit R1, R2, 4.

   [87]Ibid, R3, 16.

10. In his report dated 22 September 2021, Dr Vecchio provided the following opinion:[88]

    Mr Thurling’s right knee was already significantly osteoarthritic, although asymptomatic, the second prior to the 28 August 2007 incident. Its subsequent decompensation, of whatever cause, in late 2007/early 2008 was the prime reason for its subsequent surgical intervention, rehabilitation and time off work.

    …

    Attributing the right knee decompensation to the 28 August 2007 incident is not simple, as all the contemporaneous documentation of that incident, and immediate post-incident period, only mentions the left knee as the injured region (Mr Thurling’s submission, witness statements, GP records and initial compensation certificates).

    I recognise the statements from Mr Thurling, Dr Bate and Neurosurgeon expert Professor Fearnside, all attributing the lack of pain sensation as being responsible for this lack of recognition of the emerging right knee issues. However, if it is accepted the reason for the right knee decompensation was instability, it would have been apparent immediately post-incident if it resulted from the injury, or at least within at least one of the multiple post-incident reviews by his GP, whose 7 September 2007 consultation documents examination of the right knee, without any reference of abnormality or swelling. I would offer that an injury to the right knee would have reasonably resulted in a quick succession of disability, including swelling which Professor Fearnside alludes to should have been symptomatic immediately as Mr Thurling is able to appreciate pressure if not pain.

    [88]Ibid, R2, 8.

11. In relation to any predisposition the Applicant had to the condition, Dr Vecchio opined:[89]

    Mr Thurling has a clearly osteoarthritic deformed right knee (valgus) prior to 28 August 2007, but it was apparently asymptomatic. It is well known that simple and sometimes innocuous trauma easily decompensates an abnormal knee, resulting in the need for arthroplasty. Sooner or later, he would have required such surgery, and whatever occurred in the lead up to the December 2007 presentation is the likely cause of this destabilisation. It is this cause that is in conjecture.

    [89]Ibid, R2, 11.

12. In his report dated 3 August 2022, Dr Vecchio remarked:[90]

    Much has been made by others regarding the Brown-Sequard syndrome shielding symptomatic reporting of an evolving sequela to an injury that would have otherwise been immediately symptomatic on the basis of reduced/absent pain sensation of the right lower limb. The reality is that pain is not the only signal to injury and that other symptoms (swelling and instability to nominate two possibilities) would have been easily interpretable by Mr Thurling: if the right knee was symptomatic as a consequence of the 28 August 2007 incident, Mr Thurling would have been able to volunteer these. He did not, in his own original statement relating to the incident.

    …

    I recognise the unusual Brown Sequard neurological status, resulting in the lack of pain perception in the right knee. I offer that this consideration as the prime reason for the apparent delay between the 28 August 2007 injury and the first presentation relating specifically to the right knee in the following December may be over-stated.

    [90]Ibid, R8, 64, 2-3.

13. He concluded:[91]

    Therefore, one can only objectively interpret, from the extensive medical documentation, that Mr Thurling did not injure the right knee in the 28 August 2007 incident, that the right knee harboured substantial pre-existing pathology (advanced osteoarthritis, genu valgus) and a history of instability and symptomatic swelling years prior to the 2007 incident. This confirms the conclusion that the right knee was well on the inevitable trajectory to replacement regardless of the 2007 incident.

    …

    Right knee replacement, undertaken 24 November 2009, was the inevitable result of a severely osteoarthritic, valgus-aligned and unstable joint, evolving over decades and independent of the August 2007 incident.

    This conclusion is based upon the comments and extensive documentation relating to the right knee in 1989 and 1990, a history of arthroscopy years previously (indicating sufficient symptoms needing to be clarified), the MRI result of 2008 documenting a severely degenerate right knee that was evolving over years and the clinical documentation of valgus alignment. Altered sensation within the right lower limb, consequential to the Brown-Séquard syndrome, also accelerated degenerative changes within that joint due to cumulative microtrauma resulting from reduced protective mechanisms of a relatively insensitive limb over decades. All of these are predecessors of the need for replacement, independent of any particular nominated incident.

    Right knee replacement was inevitable, as I have detailed, and would have been predictable years and years previously. I would easily concur that the 24 November 2009 surgery was independent of the August 2007 incident.

    [91]Ibid, R8, 66, 4-5.

14. During cross-examination, Dr Vecchio confirmed that a ‘simple or sometimes innocuous trauma can easily decompensate an abnormal knee.’  He was asked whether it is possible in the Applicant’s circumstances that the impact of a simple or innocuous trauma on 28 August 2007 damaged an already abnormal degenerate right knee.  Dr Vecchio stated:[92]

    It’s possible, but not probable according to the evidence I’ve just given you, with respect to the documentation under … review. I would accept that a right knee decompensated would have been immediately obvious, there are also ways to decompensate a knee in an (indistinct) setting from an everyday fall, because it happens in everyday life. So I still maintain that had that knee been decompensated as a consequence of the August 2007 injury, that it would have been obvious to everybody, most likely the treating doctor and also from Mr Thurling with respect to himself. So (indistinct), it also made walking around the house and tripping over something at home, this is my problem about the assumption that they’re making about an incident which is focusing us and anchoring us in a confirmatory way, but the evidence doesn’t read that way to my interpretation.

    [92] Transcript of proceedings, 2 March 2023, 63.

15. Dr Vecchio was made aware of the Applicant’s evidence that he could not mobilise his right knee following the fall on 28 August 2007, and that he later complained to his treating specialist, Dr Creer in early February 2008 that there was a range of things that he could not do with his right leg and right knee. He was asked whether he agreed, based on this timeline, that it is fairly apparent that the Applicant flared up his quiescent or asymptomatic changes in his right knee when he fell. Dr Vecchio stated:[93]

    I would say that he might be anchoring two different things together. One is a right knee which was decompensated anyway and heading down the barrels of a total knee replacement eventually, and an incident which was reportedly only affecting the left knee. I still maintain that you injure a knee, then you nominate the knee was injured for whatever reason in a presentation following that. This is the disconnect that I have difficulty in assuming. He stated that there were no symptoms in the right knee after so many years, how is it that were no symptoms in the right knee - in the left knee post that accident? This is my problem.

    [93] Transcript of proceedings, 2 March 2023, 65.

    Dr Anthony Cairns, Consultant Orthopaedic Surgeon

16. Dr Cairns examined the Applicant on 29 July 2010 and provided a report dated 9 August 2010[94] and a supplementary report dated 24 November 2022.[95]

    [94]Exhibit R1, R11, 506-514.

    [95]Ibid, R10, 81.

17. In his first report, Dr Cairns found that the Applicant ‘presented with a history of clinical findings and imaging and investigations consistent with pre-existing degenerative osteoarthrosis involving his right knee.’ This was ‘historically asymptomatic’ prior to 28 August 2007 ‘when he sustained a twisting injury to his right knee.’[96]  He noted that:[97]

    Although historically asymptomatic, the degenerative changes within his knee rendered him vulnerable to an injury subsequently diagnosed as tear of the lateral meniscus in the antecedent degenerative compartment.

    [96]Ibid, R11, 510.

    [97]Ibid.

18. During his oral evidence at the hearing, Dr Cairns explained why he reached this conclusion. He stated:[98]

    Well, basically because the pathology, which led to the knee replacement, was documented and present before the fall. Those changes, as reflected by the imagining and the intraoperative report were pre-existing and long-standing.

    [98] Transcript of proceedings, 3 March 2023, 81.

19. Dr Cairns opined that the Applicant’s current condition was no longer related to his compensable condition,[99] and that his effects of the injury sustained on 28 August 2007 were temporary, lasting no longer than six weeks post-operatively[100]. In his opinion, the Jolimont incident could reasonably be considered to have necessitated the subsequent arthroscopic procedure, partial lateral meniscectomy and chondroplasty performed by Dr Creer. However, in his view the subsequent right total knee replacement arthroplasty performed by Dr Creer was not required as a result of the Jolimont incident.[101]

    [99]Exhibit R1, R11, 511.

    [100]Ibid, R11, 512.

    [101]Ibid, R11, 511.

20. Dr Cairns recommended ongoing physiotherapy and hydrotherapy in order to improve his functional capacity and opined that the Applicant would be able to resume part-time work pending review on 12 August 2010.[102]

    [102]Ibid, R11, 512.

21. In his supplementary report, Dr Cairns wrote:[103]

    I have no cause to change my previously expressed opinion, inter alia, “that the applicant’s need to undergo a right total knee replacement derived from the underlying, pre-existing condition of osteoarthritis as demonstrated, and reported by Dr Creer”.

    Having also reviewed in detail the respected opinion of my Orthopaedic colleague Dr
    Roger Pillemer in his reports of 8 March 2022 and 28 September 2022, I am not of
    the opinion that the applicant required a right total knee replacement earlier than
    would otherwise have been the case, had he not tripped and fallen in the course of
    his employment.

    I believe that this opinion has been previously offered, and I note in particular Dr
    Vecchio’s very lucid and forensically argued opinion in relation to the applicant's claim of injury to his right knee in the index incident of 31 January 2008 (sic).

    (emphases in original)

    [103]Ibid, R10, 82.

22. In his oral evidence, Dr Cairns confirmed that he adhered to his opinion that it is unlikely that the Applicant suffered an injury to his right knee when he fell on 28 August 2007, and that he did not require the right total knee replacement earlier than he otherwise would have by reason of the fall.[104]

    [104] Transcript of proceedings, 3 March 2023, 81.

23. During cross-examination, Dr Cairns was questioned about Dr Creer’s report dated 6 February 2008 in which he recorded that since the Applicant’s fall on 28 August 2007, he:

    … has had recurrent large effusions and ongoing instability and frank giving way. There has been clicking and stiffness.  He finds stairs and hills extremely difficult. Also squatting and kneeling are exceedingly difficult. He previously has had an arthroscopy on his right knee.

24. Dr Cairns was asked whether this assisted him in determining whether it is more likely or not that the Applicant suffered a right knee injury on 28 August 2007. He stated that it is consistent with such an injury, but does not indicate when it may have occurred.[105]

    [105]Ibid, 85.

    Dr Gautam Khurana, Neurosurgeon

25. Dr Khurana examined the Applicant on 12 October 2021, provided a report dated 29 October 2021 and gave oral evidence at the hearing.

26. In his report, Dr Khurana provided the following opinion in relation to whether the Applicant injured his right knee when he fell on 28 August 2007:[106]

    With regard to the 2007 fall, I have quoted the relevant contemporaneous documents, the most important of which I believe to be the GP Dr Bate’s serial medical visit records, the incident report, Workers Compensation claim form and the medical certificates (all between the period of August 2007 and January 2008, inclusive). It is my opinion that the right knee was not significantly injured in the 2007 fall, and that even with the underlying BSS+, Bryan would probably have still reported to his GP that he had swelling and give-way/instability involving the right knee in the days and weeks after that incident if the right knee was injured then. Rather, apparently subsequently when not at work but painting a friend’s home somewhere in late 2007, Bryan probably experienced an injury to his osteoarthritic right knee which then caused the swelling and give-way as reported and recoded, leading to the eventual right TKR.

    I believe there is actually no contradiction or mistake in the GP’s records of 2007. With respect, I am not in agreement with the quoted letter of Dr Mackay to Comcare or the aetiological conclusion of Professor Fearnside. I believe I have substantiated my different opinion.

    (emphases in original)

    [106]Exhibit R1, R4, 33.

27. Dr Khurana outlined what he would have expected to have been evident, and when the Applicant had injured his right knee in the fall:[107]

    Had the fall of August 2007 resulted in a substantial right knee condition, I would have expected some clinical signs of that before December 2007, even in the absence of localising pain and temperature symptoms (given the BSS+). Signs such as tripping, give-way/instability, swelling, would probably have been present close to the date of August 2007, and well before mid-December 2007.

    [107]Ibid, R4, 28.

28. In his oral evidence at the hearing, Dr Khurana was asked about the Woden Valley Hospital physiotherapy reports in relation to the Applicant from the period 1989-1990. He confirmed that these do not alter the opinion he expressed in his report.[108]

    [108] Transcript of proceedings, 2 March 2023, 69.?

29. During cross-examination, Dr Khurana was made aware of the Applicant’s evidence in relation to his attempt to use a ladder during the Painting event and was asked whether it changes his opinion about whether this activity contributed to the Applicant’s right knee pathology.[109] Dr Khurana stated that an orthopaedic surgeon is more qualified to comment on the cause of the Applicant’s right knee condition.[110]

    [109]Ibid, 75-76.

    [110]Ibid, 76.

    CONTENTIONS

1. The Applicant contends that he suffered an injury, or an aggravation thereof, described as ‘tear of lateral cartilage or meniscus of knee (right)’, that arose out of, or in the course of, his employment with the Commonwealth with a date of injury of 28 August 2007.[111]  In the alternative he contends that, prior to 28 August 2007, he suffered an ailment, namely, tight knee osteoarthritis, which was aggravated to a significant degree by the Jolimont incident on 28 August 2007 giving rise to a ‘disease’ under the Act which in turn gives rise to an ‘injury’ under the Act.[112] He contends that the delay in reporting the right knee injury was due to his inability to sense pain due to him suffering from Brown-Séquard Syndrome.[113]

   [111]Applicant’s Amended Statement of Facts, Issues and Contentions (‘ASFIC’), [4.1].

   [112]Ibid, [4.2]-[4.3].

   [113]Ibid, [4.4].

2. The Respondent contends that the evidence does not support the Applicant’s claim that he suffered a right knee injury in the Jolimont incident.[114]  It further contends that there is no evidence available to support a view that the Applicant aggravated his underlying osteoarthritic condition in the Jolimont Incident.[115] The Respondent contends that the available evidence supports the view that the Applicant's right knee injury was not caused by the Jolimont Incident, but rather, the Painting event.[116] To the extent the Applicant alleges that he aggravated an underlying osteoarthritic condition in his right knee in the Jolimont incident, the Respondent contends that this alleged aggravation was also caused by the Painting event.[117]

   [114]Respondent’s Amended Statement of Facts, Issues and Contentions (‘RSFIC’), [4.4].

   [115]Ibid, [4.5].

   [116]Ibid, [4.6].

   [117]Ibid, [4.7].

   CONSIDERATION AND REASONS

3. The Tribunal has considered the material before it, including the evidence of the Applicant and the expert medical evidence, and the oral submissions of the parties. The Tribunal is satisfied that the parties have had an adequate opportunity to present their case.

   1)    Did the Applicant suffer a right knee injury on 28 August 2007?

4. The parties agree that the main issue for determination is whether the Applicant suffered a right knee injury in the course of his employment on 28 August 2007.[118]

   [118] Transcript of proceedings, 3 March 2023, 86, 93.

5. The evidence before the Tribunal is that on 28 August 2007, following the Jolimont incident, the Applicant attended his General Practitioner, Dr Bate, and informed him that he had injured his left knee when he fell. Dr Bate’s clinical notes record that the Applicant did not mention that he had noticed symptoms in his right knee on any of the seven occasions between 28 August 2007 and 14 September 2007 when he attended Dr Bate for review of his left knee injury.  Dr Bate’s notes do not reference the Applicant’s right knee prior to 13 December 2007, with the exception of the entry on 7 September 2007, where he detailed his findings in relation to the Applicant’s left thigh and knee before noting that there was a comparable degree of laxity of lateral collateral ligaments (LCL) bilaterally. Dr Bate confirmed in a letter to the Respondent dated 8 December 2016 that ‘the relevant clinical notes had been made contemporaneously.’[119] As both Dr Vecchio and Dr Khurana opine in their reports, it is highly unlikely that Dr Bate would have wrongly recorded on seven separate occasions the knee the Applicant reported to have injured during the Jolimont incident. 

   [119]Exhibit R2, T68, 197.

6. At no stage has the Applicant positively asserted that he injured his right knee during the Jolimont incident, despite having the opportunity to do so in his oral statement dated 7 June 2018, in his oral evidence at the EOT hearing, and at the hearing before this Tribunal. His evidence is that he began to notice right knee symptoms ‘a couple months’ after the fall, suggesting that by the end of October 2007 he was experiencing such symptoms. Dr Bate’s clinical notes record that on 13 December 2007, the Applicant reported that he had been experiencing a swollen right knee for a month.  On the basis of this evidence, the Tribunal is satisfied that the Applicant’s right knee symptoms commenced in mid-November 2007, being about two and a half months after his fall on 28 August 2007.

7. The medical experts are divided in relation to the reason for the delay in the onset of the Applicant’s right knee symptoms. Dr Pillemer and Dr Fearnside attribute this delay to the fact that the Applicant does not experience pain in his right knee due to his Brown-Séquard syndrome, and it was only when he experienced swelling, tightness, and instability in his right knee that caused him to stumble that he became aware of the injury to that knee. By contrast, Dr Vecchio, Dr Khurana and Dr Cairns are of the view that had the Applicant suffered any significant injury to his right knee on 28 August 2007, he would have suffered the onset of symptoms, specifically swelling and tightness, either immediately or very soon after the fall, and certainly well before mid-November 2007.

8. On 6 February 2008 Dr Creer recorded that the MRI of the Applicant’s right knee showed large tears of the medial and lateral menisci.[120] However after performing the arthroscopy on 25 February 2008 he recorded that the medial meniscus was normal.[121] He reported that the medical imaging indicated that Applicant’s right knee displayed ‘advanced degenerative changes, in particular the lateral compartment of the knee and to a lesser extent the patellofemoral joint [which] will deteriorate with time and may have been exacerbated by the torn [lateral] meniscus secondary to the fall in August 200[7].’  He further reported having found a ‘degenerative parrot break tear involving the anterior third of the lateral meniscus.’

   [120]Ibid, T18, 52.

   [121]Ibid, T22, 57.

9. After reviewing the available medical imaging of the Applicant’s right knee, Dr Jones reported that the timing of the meniscal tears could not be accurately determined:

   The timing of the meniscal tears, the ACL and the MCL tears is indeterminate from the MRI findings. They may have preceded the fall, or could be caused by the fall. They are often seen in people with knee joint osteoarthritis as a consequence of joint instability. Likewise they are commonly seen following a knee injury in which case they are usually ascribed to the injury if there are no chronic knee joint changes on the imaging at which they were detected.

10. In relation to the timing of the knee joint synovitis, Dr Jones found that this also could not be determined from the MRI:

    The timing of the knee joint synovitis is indeterminate from the MRI findings. Acute (post-traumatic) synovitis can develop in a joint following injury and is commonly seen in the knee and shoulder joints, the wrists and small joints of the hands and feet following an injury. Synovitis is also a common accompaniment of osteoarthritis particularly in the knee. Symptomatic knee joint osteoarthritis commonly produces a knee joint effusion with features of synovitis on imaging, namely synovial proliferation and debris within the joint fluid. Mr Thurling’s synovitis could therefore be due to his fall, due to his osteoarthritis, or due to a combination of both.

11. A scan of the Applicant’s right knee on 13 December 2007 showed moderate joint effusion indicative of synovitis.  Based on Dr Jones’ explanation, this could have been a result of the Applicant’s fall on 28 August 2007, his advanced osteoarthritis, or a combination of both.

12. Whereas the medical imaging is indeterminate as to the timing of the meniscal tears to the Applicant’s right knee and the knee joint synovitis, the Tribunal is satisfied, based on the opinions of the medical experts outlined below, that the absence of symptoms in the Applicant’s right knee immediately following the fall indicates that it was not injured on 28 August 2007.

13. Dr Vecchio explained that had the Applicant injured his right knee during the fall on 28 August 2007, he would have experienced immediate disability, including swelling:  

    an injury to the right knee would have reasonably resulted in a quick succession of disability, including swelling which … should have been symptomatic immediately as Mr Thurling is able to appreciate pressure if not pain.

14. Dr Cairns expressly endorsed the ‘cogent and well reasoned opinions’ of Dr Vecchio in relation to the ‘authenticity of any claim of injury sustained’ to the Applicant’s right knee in the incident of 28 August 2007.[122]

    [122] Transcript of proceedings, 3 March 2023, 98.

15. Dr Khurana agreed with Dr Vecchio that, had the Applicant injured his right knee during the fall, clinical signs of the injury would have been apparent well before December 2007:

    Had the fall of August 2007 resulted in a substantial right knee condition, I would have expected some clinical signs of that before December 2007, even in the absence of localising pain and temperature symptoms (given the BSS+). Signs such as tripping, give-way/instability, swelling, would probably have been present close to the date of August 2007, and well before mid-December 2007.

16. Dr Pillemer accepted that the Applicant’s complaints recorded in the Woden Valley Hospital records from 1989 and 1990 are evidence that he is capable of experiencing sensations such as swelling and tightness of the knee, as well as a giving way sensation of instability.  Both he and Dr Fearnside provided no explanation as to why those symptoms, particularly swelling, would not have been apparent at or shortly after the time of the fall, if the Applicant had indeed suffered a tear of the lateral meniscus to his right knee on 28 August 2007. 

17. Based on the medical evidence before it, the Tribunal finds that had the Applicant significantly injured his right knee during the fall on 28 August 2007, he would have experienced symptoms including swelling, tightness and instability in his knee.  In making this finding it relies on the opinions of the medical experts who agree that while the Applicant would not have felt pain in his right knee due to his Brown-Séquard Syndrome, an injury to that knee would have been apparent from the swelling of the knee, and him experiencing tightness and instability in the knee. The Applicant did not report any symptoms relating to his right knee to Dr Bate until 13 December 2007 when he told him he had experienced swelling to his knee for the past month, being more than two and a half months following the fall on 28 August 2007. The absence of symptoms in the Applicant’s right knee immediately, or shortly after the fall, indicates that it was not injured during the Jolimont incident. Instead, it indicates that he suffered an acute injury to his right knee at a date more proximate to mid-November 2007, or that his previously asymptomatic osteoarthritis became symptomatic at this time.  As the Tribunal is relevantly satisfied that the Applicant did not sustain an injury to his right knee during the work-related Jolimont incident on 28 August 2007, it is not necessary for it to make a finding as to how or when the Applicant sustained the non-work-related injury to his right knee.

    CONCLUSION

18. The Tribunal is satisfied that the Applicant did not sustain an injury to his right knee during the Jolimont incident on 28 August 2007 and therefore it finds that the Respondent is not liable under section 14 of the SRC Act to pay compensation to the Applicant for his right knee condition.

19. The Tribunal further finds that the total knee replacement medical treatment the Applicant received in November 2009 was not reasonably required in relation to an injury for the purposes of section 16 of the SRC Act.

    DECISION

20. Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decisions dated 2 March 2017 and 26 April 2017 are affirmed.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

..................................[SGD]......................................

Associate

Dated: 3 July 2023

Date(s) of hearing:	1, 2 and 3 March 2023
Solicitors for the Applicant:	J, Mrsic, Slater & Gordon Lawyers
Counsel for the Respondent:	B. Kelly, 4 Wentworth Chambers